A lifeline for MH370 search – Shaun Kang

The search for the aircraft has now entered its two-year mark and the designated search area has almost been fully covered.

However, in spite of the extensive efforts, the main wreckage is yet to be found.

Although much is yet to be ascertained on the mysterious disappearance of MH370, the governments of Australia, Malaysia and China have unanimously pronounced that search efforts will cease should there be no further discoveries within the present search areas.

Pursuant to this, Prime Minister Datuk Seri Najib Razak has declared that the three governments will hold a tripartite meeting to discuss the way forward if search efforts remain futile after exhausting the search area.

Consistent with the international nature of aviation, international law – in particular the Convention on International Civil Aviation and its Annexes (Convention) – provides a uniformed set of rules on aviation to all countries.

This encompasses guidance on regulating search and rescue operations as well as air crash investigations which the Convention stipulates as legally obligatory.

However, the Convention does not provide clarity on how long the search for a wreckage should proceed, nor does it explicitly lay out the form of operations required in terms of the number, type of vessels, personnel and instruments that would supervene a decision to continue search efforts.

Furthermore, in the case of MH370, there is hardly any past experience to learn from, considering that almost every crash site and wreckage of a commercial flight had been uncovered in the past.

This does not abdicate the responsibility and need for deriving credible answers on the incident. It is also in the best interest of the aviation industry and its passengers that the cause of the accident is discovered, serving as impetus for regulatory and technical improvements to ensure flying is safe.

If the decision is made to terminate the search, States Parties to the Convention can and should clarify Malaysia’s obligation to continue the search before the Council of the International Civil Aviation Organisation (ICAO).

Financing the search

With safety being a top priority in the aviation industry, and the hundreds of Boeing 777 still in use, coupled with the recent discovery of the plane's debris, there is good reason for the search to continue.

However, an impending question to consider is the financial costs needed to further the search and who the contributing parties would be.

To date, the search for MH370 has already amounted to more than USD$130 million, contributed by the governments of Malaysia, Australia and China.

Unfortunately, international law does not shed light on who should contribute financially to the search, besides the obvious assumption that the country which has the responsibility for the investigation and search would naturally have to bear the cost, in this case Malaysia and Australia.

To sustain the search beyond the initial 120,000 sq km, it is proposed that a global financial contribution system be established, requiring financial contribution by all stakeholders including aircraft manufacturers, governments, airlines and insurers.

Perhaps, a permanent fund could even be constituted to fund search operations for future accidents of such nature.

As the Convention highlights, the purpose of an accident investigation is not to attribute liability but rather, it is done for the prevention of future accidents or incidents.

There should be no hesitation that in the interest of safety the investigation and search operations must continue. – March 9, 2016.

* Shaun Kang is a researcher at the Centre for International Law, National University of Singapore.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.